DPP v Smith

1. In a trial by jury that occurred from 17 February 2025 to 24 February 2025, the offender, Lachlan John Smith, was found guilty of two offences on an indictment dated 8 June 2023. They were: (a) sexual intercourse without consent (CAN 5994/2022); and (b) act of indecency without consent (SC CAN 99/2023).

2. He is now before me for sentencing on those charges. The offender was also charged with a transfer charge of common assault contrary to s 26 of the Crimes Act 1900 (ACT) (CAN 5677/2022). Pursuant to s 68E of the Supreme Court Act 1933 (ACT), it is for the court to determine the offender’s guilt or otherwise in relation to a transfer charge.

3. The maximum penalty for a charge of sexual intercourse without consent pursuant to s 54(1) of the Crimes Act is 12 years’ imprisonment. The maximum penalty for a charge of an act of indecency without consent pursuant to s 60(1) of the Crimes Act is seven years’ imprisonment. The maximum penalty for a charge of common assault pursuant to s 26 of the Crimes Act is two years’ imprisonment.

Facts

4. The jury found the two indictable offences proven beyond reasonable doubt. I am required to find the facts in relation to those offences and for the purposes of determining the transfer charge of common assault.

5. The jury clearly accepted the victim’s evidence. I accept the victim’s evidence. She appeared to me to be a credible witness, not embellishing her version of events. The occurrence of sexual intercourse was not in dispute. Consent and knowledge of consent was in dispute. On those issues, I accept beyond reasonable doubt the victim’s version of events. The hitting of the victim with the shoe was also in dispute. On that issue, I accept her evidence beyond reasonable doubt.

6. The offender was living with the victim. She was approximately 34 weeks pregnant. On the evening of 3 December 2021, the offender went out with his older brother. He left between 10:00 and 10.30pm and came home between 5:00 and 6:00am on 4 December. While he was out, he consumed methamphetamine, cocaine and alcohol. At some stage on 4 December, he had also smoked cannabis, but it is not clear whether that occurred before or after the offending.

7. When he came home, he accused the victim of having someone there with her. During the morning, he was behaving reasonably, but then switched and threatened to “smash” the victim’s head in and made other threats. She went back to sleep. He subsequently woke her up because he wanted to have sex. The victim said “no”, “I don’t want to do anything”, “you’re off your head”, “please leave me alone”. He made her get on her knees and suck his penis. He alleged that she had been with someone else, touching the outside of her vagina and saying, “who’s been in there”. While the evidence refers to “touching my vagina”, that is to be understood as touching her external genitalia rather than involving penetration to any extent. This was skin on skin contact. He behaved in an emotionally manipulative manner, saying something to the effect of: “Obviously … you don’t love me if you can’t do that for me”. The victim said, “I ended up just having to suck it up and do it”. At the start, she said she “didn’t necessarily disagree to it”. However, in cross-examination, she denied that she did not necessarily disagree with having sex with the offender. Her other evidence in her evidence in chief interview indicated quite clearly that the words “didn’t necessarily disagree to it” should not be understood as indicating that she had freely and voluntarily consented to sucking his penis. Her most detailed description of what occurred in the evidence in chief interview was as follows: He ended up pressuring me into sucking his dick. Um, he grabbed me and, like, made me go on my knees on the floor. And, obviously, I was thirty-four weeks pregnant, so that was uncomfortable in itself. Um, he started by grabbing me by the hair and, like, pushed my head down. And, like, every, like, couple of seconds I’d come up – like, come off and I’d call him every name under the sun, because I felt very, very violated and, like - you know, it was just really not okay. And then, like, after, like, thirty seconds, I started, like, gagging and vomiting. And because, obviously, I had just woken up, I had nothing to eat. So I wasn’t just, like, vomiting vomiting, it was, like, dry retching, which made it ten times worse. And so I was vomiting now and he’s like – and he did not care. He didn’t care that I wanted to stop. I kept telling him (indistinct) that I wanted to stop, and he just kept telling me that I had to keep going.

8. She described that the event kept going on for half an hour until he ejaculated. However, elsewhere in her evidence, she described it as having been for 30 seconds until she started to vomit and then five more minutes until ejaculated.

9. The offender then then left the room. The victim cried herself back to sleep. She slept until about 11:00am or 12 noon. When she woke up, she was hungry. She ordered home-delivered pizza. The pizza delivery person dropped off the pizza. This led to the offender threatening to bash the victim because he interpreted the pizza delivery person as being “someone sneaking around the back that he thought was over the night before”. She grabbed his phone and tried to call his mother for help. He then took the phone from her and kept threatening to hurt her. He alleged that she had “fucked someone else last night”, called her a “dirty slut” and said: “you don’t deserve to have your kid”. He said, “If she’s not my kid I’ll kill you both”, and took off his shoe, described as a slide, and hit the victim in the face with it. She was particularly upset and scared because he had actually gone out of his way to grab something to hurt her. Then she screamed and screamed until the police arrived. He hugged her with both arms very tight, telling her to be quiet, that he was sorry, that he loves her, and he will “never do it again”. When the police were there, he continued to talk to her, telling her that their attendance was her fault.

10. The offender demonstrated either paranoid or controlling behaviour in relation to the victim. This manifested itself in his constant obsession about whether or not the victim was in a sexual relationship with someone else. Before he went out on the evening in question, he told her that he wanted her to go and stay at his mum’s house.

11. I am satisfied beyond reasonable doubt of the commission of the common assault. It involved hitting the victim on the face with a shoe referred to as a “slide”. It occurred in a family violence context. No actual bodily harm arose from the incident.

Objective seriousness

12. The act of indecency without consent involved the touching of the victim’s external genitalia when the offender was accusing her of having sex with somebody else. The offence occurred in relation to somebody with whom he had an intimate relationship, which may have lessened the shock value of such a sexual touching. On the other hand, occurring as it did within that relationship, it represented a form of paranoid control over the victim consistent with much family violence offending. It is at the low end of the mid-range of objective seriousness for this offence.

13. The sexual intercourse without consent involved oral sex. The victim made clear that she did not want to have penile-vaginal sexual intercourse with him. He then pressured her into performing oral sex, including doing physical acts required to get her on her knees on the floor and grabbing her head. The victim “called him every name under the sun”. I am satisfied beyond reasonable doubt that he knew that she had not consented. The offending continued notwithstanding that the victim vomited during the course of the oral sex. The evidence as to how long the acts occurred for varied, the two alternatives being five minutes or half an hour. It is possible to find beyond reasonable doubt that it occurred for at least five minutes and continued until the offender had satisfied himself by ejaculating. It is a mid-range example of sexual intercourse without consent.

14. The common assault involved hitting the victim with his shoe. It involved the use of an object and occurred in a family violence context. It is at the mid-range of objective seriousness for a common assault. Victim Impact

15. The victim of the offending read her victim impact statement. The victim impact statement records that the victim lives with complex post-traumatic stress disorder and suffers from memory loss. She gets triggered by certain things that other people do not even notice. She has difficulties trusting people. She has to cope with that as well as two small children. She expresses her fear that, once the offender is released from custody, he will hurt someone else in the way that he hurt her.

Subjective circumstances

16. The personal circumstances of the offender are described in a pre-sentence report dated 23 April 2025 and in the expert reports of Dr Dayalan and Professor Greenberg relied upon at the trial.

17. The offender is 21 years old. As at the date of the offending, he was 18 and a half. He had limited contact with his father throughout his life. He has had a tumultuous relationship with his mother, although she has been recently visiting him in custody.

18. The offender and the victim of the current offences have a three-year-old child.

19. He completed Year 8 at school. He appears only to have been employed for four weeks in 2021. He has only vague plans to seek employment in the future.

20. When in the community, he was receiving Centrelink payments of some sort, which he thought might be a Disability Support Pension.

21. He commenced using methamphetamine and cannabis at the age of 13 or 14. He was using one or other of those drugs daily for a period. He used methamphetamine every couple of weeks, but this increased in the period prior to being remanded in custody. One of three urinalysis drug tests undertaken while in custody was positive for methamphetamine.

22. Information from Canberra Health Services confirmed that he has been diagnosed with schizophrenia. He described a decline in his mental health as contributing to the offending.

23. Dr Dayalan identified that the offender has a strong family history of psychotic illnesses. He made a diagnosis of schizophrenia as well as “substance use disorder - stimulants and cannabis”. He concluded that the offender was probably experiencing psychosis at the time of the offending, but was not acutely unwell. He said it was not possible to attribute his sexual offending to any psychotic features. Rather, he pointed to disinhibition secondary to substance use as having played a role, along with a sense of insecurity in relationships arising from childhood trauma and neglect. Dr Dayalan said it would be difficult to disentangle the role of personality and mental illness/substance use in the antisocial behaviour that he engaged in.

24. Professor Greenberg said that it was more likely than not that the offender suffered from: substance use disorder, mixed; unspecified schizophrenia spectrum and other psychotic disorder; attention deficit hyperactive disorder; antisocial personality disorder/traits. He found that the offender’s use of substances including cocaine, crystal methamphetamine, and cannabis likely exacerbated his personality problems, but they were “potentially amenable to rehabilitation”. He described the offender as having a very strong family history of schizophrenia.

25. When talking to the author of the pre-sentence report, the offender described his behaviour as being disgusting and wished that it had not happened. His mother expressed concerns that her son would require a high level of support and structure in the community after spending an extended period in custody.

26. He is assessed by the author of the pre-sentence report as being at a high risk of general reoffending and an above average risk of sexual reoffending. He was assessed as being not suitable for a community service work condition.

27. His compliance with supervision while on bail was considered unsatisfactory.

Criminal history

28. [Redacted].

29. As an adult, he has been convicted of assault occasioning actual bodily harm, an offence which was committed against the same victim on 13 June 2021, and sentenced to six months’ imprisonment, which was served from February to August 2022.

30. Subsequent to the current offending, he committed two offences of failing to comply with a family violence order relating to the victim of the current offending, for which he was given sentences of imprisonment, as well as three other offences committed against his mother.

Breach of good behaviour order

31. The offending on 4 December 2021 put the offender in breach of a good behaviour order imposed in relation to a previous offence of theft, which operated from 16 January 2021 until 15 January 2022. However, that good behaviour order was subsequently cancelled, and the offender was resentenced to one month of full-time detention which has been fully served. In fact, as a result of the backdating of the sentence, it was fully served prior to the date of the present offence. In the circumstances, no further action could or should be taken in relation to the breach.

Time in custody

32. The offender has been in custody since 1 May 2023. Some of that time has been taken into account with respect to previous sentences. However, 553 days (just over 18 months) are solely attributable to the present offending (1 November 2023 to 7 May 2025).

Consideration

33. The offender is a young man, only 18 and a half at the time of the offending, who suffers from schizophrenia or a schizophrenia-related condition and has antisocial personality traits. Combined with illicit drug use, that means there are strong criminogenic factors operating. The offending in the present case was contributed to, directly or indirectly, by his drug use and mental illness. The effects of mental illness and drug use occur on top of the usual impediments of immaturity.

34. He has a very poor criminal history which indicates that this was certainly not an isolated occasion of offending, reflects poorly on his prospects of rehabilitation, and is indicative of the importance of specific deterrence.

35. His culpability is somewhat reduced as a result of his mental illness as I consider there was at least an indirect connection between the offending and his mental illness, drug use and paranoid beliefs. Because of his mental health conditions, he is a less suitable vehicle for general deterrence. However, his mental health conditions increase the need for both specific deterrence and the protection of the community.

36. Similarly, the burdens of imprisonment may be increased by his mental health condition but, on the other hand, his mental health condition is likely to be improved by the stability of the medication regime whilst in custody.

37. His prospects of rehabilitation are, at best, guarded. The hope lies in the fact that his illicit substance use may be able to be controlled and that in turn will improve his schizophrenia-related condition. However, if unsupervised in the community, there is a real risk of him failing to manage his medication regime and becoming involved again with illicit substances.

38. Custodial sentences are clearly appropriate. There was no submission that a sentence served by full-time detention with a non-parole period was inappropriate. Indeed, counsel for the offender submitted that, having regard to the importance of stability of the offender’s medication, a substantial period subject to parole would be appropriate.

39. The submissions made on behalf of the prosecution involved a submission that more regard should be paid to the maximum penalty than to the pattern of sentencing in past cases. That submission was not supported by any proper examination of the pattern of sentencing and was not assisted by the quotation, out of their context, of passages from R v Finau (No 2) [2020] ACTSC 193 at [42] and DPP v Mack [2024] ACTSC 227 at [39].

40. The sentences will be backdated to take into account the time in custody which has not been taken into account in relation to other sentences.

41. On the charge of an act of indecency without consent, I will impose a sentence of imprisonment of two months, one month of which will be cumulative with the next sentence.

42. On the charge of sexual intercourse without consent, I will impose a sentence of three years’ imprisonment.

43. On the charge of common assault, I will impose a sentence of three months’ imprisonment, two of which will be cumulative upon the previous sentence.

44. The aggregate sentence is 39 months, or three years and three months. The appropriate way in which this is to be served is through a head sentence with a non-parole period. I consider that the minimum period actually required to be served is a period of 23 months, which is approximately 60 percent of the head sentence. This will mean that, if he is granted parole at this time, there is a substantial period during which the offender will be subject to supervision on parole. As indicated earlier, that period of supervision on parole is important given that stability of medication use and staying free of illicit drugs will both be important for him in order to avoid further offending in the future.

45. I was asked to direct that the victim impact statement be provided to the Sentence Administration Board. I am not sure whether such a direction is necessary having regard to the documentation that would usually be provided to the Board, but, in this case, I will make it.

Orders

46. The orders of the Court are: (1) On the charge of committing an act of indecency without consent (SC CAN 99/2023), the offender is convicted and sentenced to imprisonment for two months from 1 November 2023 to 31 December 2023. (2) On the charge of sexual intercourse without consent (CAN 5994/2022), the offender is convicted and sentenced to imprisonment for three years from 1 December 2023 to 30 November 2026. (3) On the charge of common assault (CAN 5677/2022), the offender is convicted and sentenced to imprisonment for three months from 1 November 2026 to 31 January 2027. (4) The non parole period commences on 1 November 2023 and ends on 30 September 2025. (5) The registrar is directed to provide the victim impact statement included within Exhibit 1 to the Sentence Administration Board.

I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 15 May 2025